JUDGMENT :

SUNITA AGARWAL, CJ.

Heard Mr. Mihir Thakor, the learned Senior Advocate assisted by Mr. Nirag N. Pathk for the petitioner and Ms. Manisha Luvkumar, the learned Senior Advocate assisted by the learned advocate Mr. Rohan Luvkumar for the respondent.

2. The short question which arose for our consideration in the present petition is as to the seat of arbitration, as agreed between the parties in the initial agreement, and the change of seat, if any, agreed between them during the course of arbitration proceedings conferring exclusive jurisdiction to the Court at the place of arbitration. In other words, the question is as to whether the seat of arbitration shall remain static at ‘Ankleshwar’ as agreed in the written agreement, or would shift to ‘Ahmedabad’ as alleged to have been agreed between the parties during the course of arbitration proceedings, held at Ahmedabad.

3. The undisputed facts of the case are :-

(i) A written contract dated 17.10.2018 for “Design, Engineering, Supply, Installation and Commissioning of 3 Nos. x 2.5 LSCMD GAS COMPRESSION OF FACILITIES AT CTF-ANKLESHWAR ON LSTK BASIS” was executed between the parties namely the Oil and Natural Gas Company (the respondent herein) having its registered office at New Delhi and one of its work center at Ankleshwar Asset, Ankleshwar, District Bharuch, Gujarat and M/s. Kirloskar Pneumatic Co. Ltd., the petitioner.

(ii) At the outset, the terms and conditions of the contract signed by the parties relevant for our purposes in Clause No. 1.2.6, 1.3.1 and 1.3.2(11) of the General conditions of the contract contained in Annxure-A, are set out as under :-

“1.2.6 Amendment to the Contract

No amendment or other variation of the Contract shall be effective unless it is in writing, is dated, expressly refers to the Contract and is signed by a duly authorised representative of each party hereto.

1.3.1 Applicable Laws

All questions, disputes or differences arising under, out of or in connection with this Contract shall be settled in accordance with laws of India (both procedural and substantive) from time to time in force and to the exclusive jurisdiction of the Courts at the place where the CONTRACT is signed in India, subject to the provisions of clause 1.3.2.

1.3.2 Arbitration

1.3.2(11) The seat of the arbitration shall be the place from where the LOA/NOA has been issued. For the sake of convenience, parties may agree to hold the proceedings at any other venue. The arbitration shall be conducted in the English language. Insofar as practicable, the Parties shall continue to implement the terms of the Contract notwithstanding the initiation of Arbitration Proceedings.”

(iii) On a dispute arose between the parties in the year 2021 emanating from the contract, a three member Arbitral Tribunal was constituted on 01.10.2021 with the consensus of the parties. On a notice dated 01.10.2021 issued by the learned Presiding Arbitrator, the preliminary meeting was held on 07.10.2021. The Arbitral Tribunal rendered its award on 13.03.2023, and a clarificatory order dated 15.04.2023 was passed on the application under Section 33(1) of the Arbitration and Conciliation Act, 1996 (in short as ‘the Act, 1996).

(vi) The respondent ONGC filed application under Section 34 of the Act, 1996 before the Court at Ankleshwar, Gujarat challenging the award as well as the clarificatory order.

(vii) On the first returnable date, the petitioner herein raised a preliminary objection as to the jurisdiction of the Commercial Court at Ankleshwar based on the minutes of the preliminary meeting dated 07.10.2021 recorded by the learned Presiding Arbitrator, asserting that the learned Presiding Arbitrator had recorded therein the mutual agreement of the parties to the arbitration to have the seat of arbitration at Ahmedabad,

(viii) It is the case of the petitioner that in reply to the said objection, the respondent ONGC had admitted that the parties have consented to have a jurisdictional seat of the arbitration at Ahmedabad.